Ohio may place burden of proof on prosecution and adopt “hard” stand-your-ground

This past Wednesday the Ohio House voted by a 64 to 26 margin to pass HB 228, which seeks to bring Ohio self-defense law into the modern era. It is believed by advocates of this legal advance that the Senate version of the bill will pass that chamber easily, and with sufficient votes to overcome a promised veto by Ohio Governor John Kasich (R).

Although the bill makes several changes to Ohio self-defense and gun law, the changes of most interest in the context of self-defense involve changes to the burden of persuasion on a legal claim of self-defense and the adoption of a “hard” stand-your-ground provision.

Burden of Persuasion Shifts to Prosecution, Beyond a Reasonable Doubt

Although we’re all familiar with the phrase “burden of proof,” fewer realize there are actually two such burdens: the burden of production and the burden of persuasion.

The burden of production has to do with the minimal amount of evidence required before a legal argument can be made in court—if there is zero evidence to support a legal argument there’s no point presenting it to the jury. On the legal defense of self-defense the burden of production is on the defendant claiming self-defense. This is rarely a difficult burden for a defendant in a “good guy” case of self-defense (the small minority of self-defense claims).

Once the burden of production has been met on the legal defense of self-defense the question is then which party bears the burden of persuasion—that is, whose job is it to convince the jury of the truth or untruth of the self-defense claim. Further, by what legal standard or threshold is that proof to be made.

Considering the matter generally, the burden of persuasion could theoretically be placed on either the defendant or the prosecution. The standard of evidence can separately be set at any of a variety used by the courts: preponderance of the evidence, clear and convincing evidence, beyond a reasonable doubt, and so forth.

In 49 states it is the prosecution who bears the burden of persuasion on self-defense, and who must disprove the claim of self-defense beyond a reasonable doubt.

It used to be fairly common across the United States that the burden of persuasion for self-defense was placed on the defendant, who must prove self-defense by a preponderance of the evidence. Over the last several decades, however, every state has abandoned this approach and instead decided to make self-defense effectively a negative element of the crime charged, and adopted the burden described in the prior paragraph.

Every state, that is, except for Ohio, which is the last state to still place the burden of persuasion on self-defense on the defendant and by a preponderance of the evidence. It is this outdated legacy of self-defense law that is one of the primary targets for HB 228. Should the bill become law, Ohio will finally join the other 49 states in placing the burden of persuasion on self-defense on the prosecution to disprove self-defense beyond a reasonable doubt.

Not surprisingly, this change is vigorously opposed by both prosecutors and law enforcement in Ohio because it shifts strength of legal position from their hands to those of the defense.

Ohio to Adopt “Hard” Stand-Your-Ground

Properly understood, “stand-your-ground” laws merely relieve law-abiding innocent victims of a violent attack of a duty to attempt to retreat before they can use defensive force to protect themselves, their family, and other innocent persons from that attack.

The phrase “stand-your-ground” has been politicized to such a degree that rational discussion of the doctrine is almost impossible to find, and it has been made to appear as if “stand-your-ground” were some aberrant legal doctrine in place in only a few presumably racist states.

In fact, the large majority of about 36 states qualify as “stand-your-ground” states in that they do not impose a legal duty to retreat before acting in otherwise lawful self-defense. About half of these states adopted “stand-your-ground” through statute, and about half have long been “stand-your-ground” states on the basis of common and/or case law.

If HB 228 becomes law, Ohio would become the 37th state to qualify as a “stand-your-ground” state. I would note that Ohio would be the seventh state to shift from the outdated “duty-to-retreat” doctrine to the modern “stand-your-ground” doctrine since the famous trial of George Zimmerman made “stand-your-ground” a household name (despite the fact that the Zimmerman trial had nothing whatever to do with the “stand-your-ground” doctrine). No state has moved in the other direction, from “stand-your-ground” to “duty-to-retreat.”

But that’s not all. Even among “stand-your-ground” states there are really two “flavors” of the doctrine. About 30 of the “stand-your-ground” states are what I refer to as “soft stand-your-ground” states. The prosecutor can’t argue that the defendant had a legal duty to retreat, because no such duty exists. The prosecutor can, however, argue that the defendant could have safely retreated, and a reasonable person would have, and therefore the defendant’s failure to safely retreat was unreasonable.

Reasonableness is a requirement of lawful self-defense, and a defendant who acts unreasonably does not qualify. This argument is thus a way for a prosecutor to attack a defendant’s failure to retreat on the self-defense element of reasonableness rather than on the self-defense element of avoidance (which “stand-your-ground” takes off the table).

In about a half-dozen of the 36 “stand-your-ground” states, however, the statutory provision for “stand-your-ground” explicitly provides that the finder of fact (usually the jury, unless the judge in a bench trial) may not consider the issue of retreat in evaluating the defendant’s claim of self-defense. This is what I refer to as the “hard stand-your-ground” flavor of this legal doctrine, as it more or less entirely takes the issue of retreat off the table for an otherwise innocent defendant.

Precisely this “hard stand-your-ground” statutory language is included in HB 228, and thus if the bill becomes law, Ohio will become not just the 37th “stand-your-ground” state but also the seventh “hard stand-your-ground” state.

Comments

Having almost finished reading “The Law of Self Defense” (and having taken LFI-1) Ohio really stuck out like a sore thumb with its stance on self-defense. This is good news… how good it is … is best summed up in Andrew’s book which is a “must read”.

Like many, I got “hooked” on Legal Insurrection with the Zimmerman case and LI is now a more than daily update for me.

Range work and tactics are always great to have as rust can easily form… but the real battle … the real blood sport is in the courtroom. “Court Proofing” oneself is very important for survival.

Even in my super liberal State, the self-defense of the home has always prevailed. And dead bodies are the evidence.
But as we locals succumb to the mass migration of snowflakes and such fleeing California (and now Washington State) I can see that they wish to impose the values that destroyed their communities.
A lesson never learned. They hate hunting, guns, country life, our language, our customs, our food, our humor…everything about us. Yet profess, each and everyone one, to be an expert on how we need to live.

My neighbor was recruited to “guide” some clients into Denali for REI. My neighbor initially described them as “special needs” clients… so I asked, “how so”? From Marin County… ignored bear country protocol, complained about no Whole Foods store nearby, and generally ignored the guide’s directions. Alas, the park grizzlies were not around to “forage” for the winter.

The past is a distant country, Bob. The Kali I grew up in back in the ’70s no longer exists. I don’t need a guide for most of my hunting. I don’t need one for hunting Caribou northeast of Dillingham and not when hunting Blacktail on Uganik or anywhere really.

I always enjoyed the diorama at the Kodiak airport. A Kodiak bear versus a blacktail deer. A classic “Godzilla vs. Bambi” if there ever was one. One thing that made my heart especially glow was that some Kali lib was going to have a heart attack over it.

I can understand why some Californios haven’t given up on the state. If the ranch has been in your hands since the Gold Rush days, what do you do? Pick up and leave? I kinda sorta fall into this category myself. I still own an interest in a property in outside of Oroville. Which has been in the news lately. At least, I think I still own an interest in that property. I don’t know where the fires are.

These fires are like nearly all of Kali’s agonies entirely self inflicted. As exhibit A I give you governor moonbeam. Jerry Brown was the beginning of the end back in the ’70s and it’s fitting he’s the end of the end. Or, rather he and his spawn Gavin Newsom.

Can’t come up with a plan to burn/cut down underbrush and dead trees? I know! Blame something you have no control over. Global warming.

It’s funny. The rest of my family is about done with the place. We’re probably going to lose the cabin. Which will somehow be fitting as it used to be such a beautiful place and now it’s all just scars. I’ve warned them though; don’t follow me to Texas if you plan on bringing your STDs with you. State Transmitted Diseases. We have a nice operation going here in Texas. I’m not going to ruin it.

I’ve gone the long way around the barn. When I show up in Alaska I have not special needs.

The Late Jim Cooper called the past “another country”.. one we wished to revisit but can’t. Did my internship, residency and early private practice in SoCal starting in 1980… and have seen the changes over the decades. Victor Davis Hanson has seen all of this and talked about it. Jerry Brown’s dad , as governor, had a grand plan to make California really great… only to see it now squandered away in a march to progressive destruction.

I have lived on Kodiak Island. Definitely, a place to get up close and personal with the “natives”. At least coastal brownies do not, as a rule, have the hair-trigger mindset of the interior grizzly.

They voted for him four times. The past is a distant country, Bob. The California that is isn’t the one I grew up in. I can guarantee you only one thing. When I show up in Alaska I have no special needs.

I bring no STDs. State Transmitted Diseases. I like my Texas straight up, no ice.

Not all of us do that, Mr. Report. And I have the D-Guard Bowie knife and Hawken rifle to prove it.

I’m getting sick of this, “Californians move to other states and ruin them” business.

Barbara Streisand isn’t going to move to your state. She will move to France. Hello, Texas! I’m bringing my gun collection to you. And my cattle, as I no longer can pasture them and water them thanks to Berkeley and the Delta Smelt.

“…The Union will not exist in the near future. Start planning the independent state you will migrate to.”

I may have been too harsh on you. And I may have already taken your advice. I’ve been to Masada. I’ve been to the Alamo. I blame myself for Kali. I figured I could join the Navy and everything would be fine in my absence. That people would be watching my six. WRONG!

Thanks to the TX Legislature for the last paragraph of our Penal Code Self Defense section (§ 9.31.):

“(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.” (emphasis added)

Umm, no. Texas has some of the strongest self defense and defense of property laws in the country. This isn’t legal advice, but if someone breaks into your house and tries to steal the TV on which you planned on watching Wheel Of Fortune later, you can shoot him.

Again, this does not constitute legal advice, as you’re probably going to have to come up with a better story.

H3ll, my home state of Kali is good on this.

One more time; I am not offering legal advice. I’m not qualified. But if you shoot someone inside your house under certain conditions it’s a privileged act. And when you have made your self-defense claim, the judge will instruct the jury that they can not question the claim, even if they believe safety could have been had by retreating.

The first is for explaining the burden of persuasion, in a defense. For years I have argued with people who were entirely ignorant of the fact that in almost all criminal cases, a defense has to be proven to be, at least, probable, before a court will entertain it. Once that is accomplished, the burden of persuasion lies with the prosecution.

The second is for letting us known that Ohio is actually moving into line with the rest of the nation where duty to retreat and the burden of proof in self defense are concerned.

Good to hear that Ohio is ready to join the union in this regard. The burden of proof on self defense has always worried me. If only we could also get the legislature to add churches and synagogues as places you can carry without needing written permission as well. That would bring us up to date with the majority of the country as well.

P.S. Good riddance to Kasich. Your first term was great but it all went downhill in 2015 with your Trump Derangement Syndrome.